I was asked to make an independent review of a decision of the Board of the Sydney Rugby Union in relation to a breach by Eastern Suburbs District Rugby Union Football Club. Here is the statement of the SRU and the review itself.

1. I have been appointed by the Sydney Rugby Union (SRU) Board to provide a review of its decision dated 19th July 2024 (hereinafter referred to as the Decision) concerning the alleged breach by Eastern Suburbs District Rugby Union Football Club (Easts) of the SRU’s Player Points System. The Player Points System is found at clause 1 of the SRU’s Operations Manual (the Manual), the preamble of which states, “The following is the Operations Manual to guide Clubs to ensure a high level of safety, compliance and standards for the competing Clubs in the Competition(s).”

2. Contravention of Competition Rules is found at clause 4 of the Manual. Sub-clause 4.1 reads,
“4.1 Contravention of any of the competition rules, code of conduct, match day and/or commercial requirements will be dealt with by the Board, the Judiciary, the Appeals Tribunal, the Chief Executive Officer
or the Competition Manager. The authority dealing with a contravention is at the discretion of the Board. Clubs and /or individuals in contravention of these rules are liable to:
4.1.1 Be expelled or suspended from the Union and its competitions and/or
4.1.2 Be fined and/or placed on a bond and/or
4.1.3 Suffer loss of competition points and/or
4.1.4 Suffer any other penalty that the Board, the Judiciary, the Appeals Tribunal, the Chief Executive or the Competition Manager may see fit to impose.”

3. Clause 1 of the Manual which relates to the Player Points System set outs the categorisation, the applicable points cap in the grades in
which it applies, the entry by the respective Clubs of the points in a Dropbox prior to Round 1 of the Competition, which is visible to all Clubs, and the sanctions available for a breach of the system.

4. In determining this review, I have been provided with the Terms of Reference dated 30* July 2024 which requires the review of the Decision and to make any recommendations for changes to the Decision as appropriate. In making such determination I am asked to consider the following;
(i) the facts of the case

(ii) the relevant Operations Manual

(iii) precedents set by 2023 decision made by the SRU in player points matter relating to Sydney University Football Club

(IV) natural justice and fairness and the appropriate exercise of discretion contained in the Decision and the rights of the SRU Board to apply its discretion as Operations Manual Clause 4.1.

5. The Decision is found in a letter dated 19th July 2024 from the SRU signed by its General Manager Mr Peter Watkins addressed to all the
Clubs. That letter states, inter alia, that, “SRU conducted an investigation following a premiership club questioning player points for Eastern Suburbs. This investigation determined conflicting information regarding player points concerning an Easts player. SRU will be taking no further action and all clubs are reminded of their obligations under Clause 11 Player Points within the SRU Operations Manual and using Opta. Earlier in the same letter it was acknowledged that “..there was no nominated endorsed source (‘single source of truth) for finding player points under Clause 11 or within any
other published part of the 2024 Operations Manual.” The letter then goes on to state:
“As of today, the only source that will be accepted to calculate a player’s points is Opta. Opta Rugby tracks all players worldwide from the level of Shute Shield and above.”

6. The Terms of Reference provided a timetable for the filing of written submissions by interested Clubs and a right of Easts to provide written submissions in reply. During the course of the review the timetable was slightly varied to afford Easts more time to provide its written submissions and interested Clubs to respond to any reply submissions made by Easts.

7. The Terms of Reference also provided an index of documents provided to the review. Attached hereto and marked with the letter “A” is that document and the index of documents. Al documents referred to in the index were provided and read.

8. Subsequent to the 30th July 2024 more documents including submissions by interested Clubs and Easts were provided and read. Attached hereto and marked with the letter “B” is a list of these additional documents.

9. The SRU also provided by letter dated 1st August 2024 a Chronology of
key events and dates in relation to the matter. That Chronology is attached hereto and marked with the letter “C”.

10. As referred to in paragraph [7] above some interested Clubs made
written submissions being the following Eastwood (August 2024), Gordon (15* August 2024), Southern Districts (31st July 2024) and Warringah (30* July 2024).
1. The submission from Eastwood sets out the history of of Player Points System, the original allocation of the points by Easts for the player in question in two reviews prior to the 2024 season, a focus upon the words used in the Manual which it asserts gave the SRU no discretion to override by discretion a mandatory penalty for a (specific) contravention, the difference in wording in clause 11 of the Manual between different contraventions mentioned therein and finally that the relevant offence was one of strict liability once the facts constituting it were found.

12. Gordon Rugby’s submissions stated that it did not accept that because there was no single reference point for determining player points as a reason for exculpating Easts from liability to sanction. It stated that the sanctions provided for under Clause 1 of the Manual ‘are prescriptive in nature…there is no discretion afforded’. Further, it states that the language used in Clause 1 is ‘clear, unambiguous and concise: “automatic” and “results in”. If it was intended for people within SRU to have such a broad ranging, vague discretion Clause 1 would have provided so. It does not.’

13. Southern Districts’ submission ‘rests on the principle of equity’ it refers to another club which was penalised by two (2) first grade competition
points for an oversight error for fielding a player who had not been cleared to play by another union. It submits that Easts also claim an
oversight error in the calculation of player points and not to be treated the same is ‘unreasonable. It goes on to submit that the Easts player in question had played five Tests for Tonga and there must some level of accountability for this incorrect reporting. These submissions go on to dispute how much of the relevant Round 1 match the player in question played for Easts against Southern Districts. It stated that he was not a replacement but ran on and scored an early try. It states that all Clubs must comply with the terms of the Manual. The submission
then refers to a situation involving West Harbour in 2002 which had a significant number of points deducted for a similar breach.

14. Warringah’s submission also asserts the primacy of the terms of the Manual. It considers the history of the player in question playing for Easts in previous years as a Category “B” player starting on 15 points and reducing by way of annual discounts to 12 points in season 2023. To the player then being assessed by Easts as a one point ‘player’ in the Player Point System in 2024, therefore any reasonable person applying the terms of the Manual ‘should have realised there was an error?’

15. Easts on the 71 August 2024 supplied its submissions in reply (Easts’ Reply) to what has been put against them by the interested Clubs. Easts’ Reply was signed by its President Dr David Allen. Accompanying Easts’ submissions was a signed statement of Mr. Ben Batger, Easts’ First Grade Head Coach for the 2024 season. Initially, Easts had voiced its disappointment by letter dated 31st July 2024 that the SRU was conducting the Independent Review and sought that the review be withdrawn or terminated. Notwithstanding that disappointment and request the review continued and Easts participated in the process and was able to file its submissions in reply and Mr Batger’s statement.

16. Easts’ Reply dealt comprehensively with all the issues raised against it in the submissions filed by the interested Clubs. Mr Batger recounts a
history of the matter, his practice in the allocation of player points, what he had done to ensure that the player points allocated for Vunipola Fifita were correct and what he had done once alerted to the points error.

17. Easts’ Reply refers to the letter dated 19th July 2024 from the SRU signed by its General Manager Mr Peter Watkins. After quoting from Clause 11 of the Manual it states, “Significantly the Caps points accordingly recorded by Easts, available for al including the SRU to see since Round 1, was 1, not 1 which is now claimed ought to have been recorded. Easts acknowledges that under the new rules announced recently by SRU in the letter of Mr Watkins of 19 July 2024 that would now be the case.”

18. In dealing with some of the submissions of the interested Clubs, Easts’ Reply states that, “Easts also agrees with Warringah Rugby Club ['WRC'] in its letter that it is the obligation of each Club in the Shute Shield competition to comply with all the terms of the Operations Manual and the rules that govern the game.”
Further in commenting upon the SRU’s use of a discretion to take no further against Easts, the following is said at pages 6-7, “It is Easts’ view that the Eastwood interpretation of the discretionary powers of the SRU are incorrect in one respect. We refute that ‘Read in context, the discretion in clause 4 of the Operations Manual can only be construed as being conferred in relation to ‘contraventions’ where no mandatory penalty is prescribed’.” The Easts’ Reply continues, “To the contrary it is clear that SRU has wide discretionary powers conferred under clause 4.1 of The Constitution of the Sydney Rugby Union (“Constitution”). SRU’s submission to the Independent Review dated 21st August 2023 gives a very clear example of the discretion being previously used and in the context of a Caps breach used appropriately, when dealing with a matter that had a prescribed mandatory penalty relating to one of the Clubs. Under clause 11.4 of the Ops Manual, which provides that Exceeding the Cap in a Finals fixture results in an automatic forfeit, being a mandatory provision, this was breached by Sydney University Football Club ['SUFC'] 1st Grade Colts in the 2023 finals series.”

19. On page 7of Easts’ Reply it makes this statement, “This conclusion about the existence of the discretion to take no further action as the SRU decided on 19 July 2024 and to move forward with the Shute Shield is also reinforced Easts contends by the use of the word “may’ in clause 11.4 of the Caps provisions of the Manual, which is the provision that is currently relevant. That word clearly denotes a discretionary power in the SRU on these issues. It is our hope that after review of our submission and additional information provided to and by SRU, EDRUFC will see fairness as Easts does in the decisions of SRU.” Further at the bottom of page 7 it says, “Easts nonetheless stands with Souths in agreeing it is a requirement of the Participation Agreement that all Clubs comply with the Operations Manual, extending to the calculation of player points.”

20. Finally, the Easts’ Reply contends that the SRU Board had no express power under the SRU Constitution to undertake the Independent Review of its decision of the 19th July 2024, as adopted by the Board on the 30th July 2024. It submits that Clause 13 of the Constitution entitled, ‘APPEALS AND GRIEVANCE PROCEDURES’ ought to prevail over the powers conferred on the Board by Clause 8.1 of the SRU Constitution. It is also asserted that Clause 13 gives ‘no protection to Easts that remain important but are by-passed under the unique one off procedure now adopted’. In conclusion Easts suggest the Independent Review be terminated of that the Independent Review should recommend that course to the Board.

21. Subsequent to the receipt of the Easts’ Reply submissions in response were received on the 8th August 2024 from the SRU, Eastwood and Warringah and on the 9th August 2024 from the Gordon Club.

22. The SRU’s response challenged a few matters of a factual kind in the Easts’ Reply including that the Admin Dropbox is fully accessible by the Clubs including Easts. A suggestion that Gordon had breached the Manual in relation to two players was submitted as being incorrect. The Independent Review was established in accordance with Clause 8.1 of the Constitution and the Board had power under that instrument pursuant to sub-clauses 10.1 and 10.6.1 to delegate its functions. The Board placed no reliance on sub-clause 13.1 by the appointment of the Independent Reviewer to make recommendations to the Board to assist it with a final decision. There had been an appeal lodged by the Gordon Club concerning the Decision which it withdrew on the basis of the Board approving an Independent Review. The SRU did not agree with Easts’ analysis of the number of players from other Clubs and their points’ allocation.

23. Eastwood’s response suggests that the onus is on the Clubs to allocate the correct points and refers to sub-clauses 10.2.8 and 10.2.5 of the Manual as well the language used in sub-clauses 11.3 and 11.4 of that instrument. It submits that the allocation of the correct points is a question of fact. Eastwood suggests that Easts have not stated whether the person who allocated the points in 2023 for that player was consulted. Eastwood repeats its submission regarding the lack of a discretion in this instance once a breach has been found. Player Points systems, it is suggested, are not complicated or difficult to follow. Eastwood attaches the NSW Rugby League system by way of comparison.

24. The Warringah Club in its response suggests that given the conflicting information available regarding the player in question Easts have as a matter of prudence ought to have clarified the matter with the SRU prior to the commencement of the season.

25. The Gordon Club’s response was that Easts and other Clubs had an ongoing obligation to ensure that no points breach had occurred in “any one round” and that it was incumbent on the Clubs to verify the accuracy of the status of a player.

26. The Southern Districts Club by 10 am Friday 9th August 2024 had not availed itself of the opportunity to file any submissions in response to those submissions filed by Easts.

Consideration

27. Firstly Ideal with the submission that the Board’s decision to appoint an Independent Review was beyond its power under the Constitution.
The Board’s powers under the Constitution are set out sub-clause 8.1.1 which reads:
“The control and direction of the business and affairs of the Union and
the management of its property is vested in the Board, which may (subject to the Constitution and to law) exercise all such powers and do all such acts and things as the Union is by this Constitution and otherwise authorised to exercise and do, but is bound by any decision of General Meeting.”
By letter dated 30th July 2024 from the SRU’s General Manager, M.r Peter Watkins Easts were advised of the Independent Review, inter alia, as
follows,
“The Sydney Rugby Union (SRU) Board have exercised their power to appoint an Independent Review of the decision undertaken regarding Eastern Suburbs Player Points in accordance with Clause 8.1 of the SRU Constitution.
Given that numerous clubs expressed dissatisfaction with the decision
and SRU staff were being subjected to unwarranted, unacceptable abuse the SRU Board formed the view that it was in the best interest of
Premiership Rugby for an Independent Review of the decision be undertaken.”

28. The Terms of Reference for the Independent Review required that it make ‘recommendations’ in relation to the Decision. Notwithstanding, the Board’s power under sub-clause 10.6.1 of the SRU Constitution to delegate any of its duties or functions, the Board did not abrogate its powers to the Independent Review. It only sought that recommendations be made about the Decision as set out in the Terms of Reference. The Board is at liberty to accept or reject in whole or part
the recommendations made. It has in effect stayed the Decision until it has considered the recommendations of the Independent Review.

29. One of the principal issues raised by the interested Clubs and responded to by Easts is the terms of the Manual and whether in
relation to this alleged specific contravention that facts existed which amount to a breach of the Manual and whether once a breach was
found whether the Board of the SRU had a discretion to impose or not to impose a penalty of the kind found in the Sanctions part of Clause 11 of the Manual.

30. It appears to be common ground that Easts breached the Player Points System with respect to its allocation at the beginning of the 2024 of one (1) point rather than eleven (11) points for Vunipola Fifita in the Round 1 match against Southern Districts. So much is admitted in the Easts’
Reply at pages 3, 4, and 5. Notwithstanding that contravention Easts rely upon a discretion said to repose in the Board to apply mitigation or no penalty as it did in the Decision.

31. Easts and the interested Clubs are bound by the Manual. The Manual is an agreement or a regulation which binds all who participate in the Premiership Competition currently held in Sydney and Newcastle conducted by the SRU.

32. Such documents as agreements or compacts are interpreted like any other document which is designed to have legal effect. In the interpretation of contracts primacy is given to the terms of the contract agreed by and binding on the parties. In interpreting contracts one uses an objective not a subjective test.

33. There are a few important principles of the interpretation of such documents which come into play. Firstly, whether there is any conflict in relation to the Board’s exercise of its discretion between the terms of Clause 4 as opposed to Clause 11of the Manual. A fair reading of Clause 4 reveals the general powers the Board and other authorities within the SRU exercise with respect to a contravention of competition rules. Next, a fair reading of Clause 11 and the sanctions which can be imposed for breach relates to specific contraventions of the Player Points System. When such a conflict is apparent between terms of a document then a rule of interpretation is that the specific provisions override the general provisions. I find in this instance the provisions of Clause 11 are to be preferred to and prevail over the general provisions found in Clause 4. As an aside, I believe that Clause 4 of the Manual does provide a discretion to impose a penalty for general contraventions referred therein because of the use the words ‘are liable’ to the penalties which follow in that clause once a contravention is found. However, the operative clause in this instance is Clause 1 not Clause 4.

34. An examination of the sanctions found in Clause 1 identify four sanctions for distinct contraventions of the Player Point System. Those four sanctions in Clause 1 are as follows;
“Sanctions

• Failure to enter the points in the Dropbox or the database is an automatic penalty of the loss of 2 competition points from each of the affected after round 1.
• Following the completion of Round 1 ,exceeding the Points cap in any one round in a grade or colts results in the loss of five(5) Competition points and the respective Championship points and a $100 penalty.
• Exceeding the cap in a Finals Fixture may result in sanctions or penalties as determined by the Board.
• Exploitation of the Points system may result in a Club losing Competition points and/or further penalties as imposed by the Board.”

35. An analysis of the four sanctions which relate to different contraventions show a change of language between the first two sanctions and the last two. The language in the first two appears to be expressed in mandatory or peremptory terms. The use of the words “automatic penalty” in the first sanction and the use of the words “results in” in the second sanction to adopt the reasoning found in Gordon’s submission shows an intention that such sanctions are “prescriptive” and evince the concept of “strict liability” or “mandatory sentencing” once the facts constituting the contravention have been found. Therefore the operative terms of the Manual provide no room for the Board to exercise a discretion. The Board must impose the sanction in this instance found in sanction two.

36. Easts’ Reply both at pages 1 and 7, relies upon an earlier version of the Manual for Clause 11.4 not the current version operative for the 2024 season.

37. Easts’ Reply at page 7gives focus to the word, ‘may’ in Clause 11.4 as giving a discretion to mitigate a contravention. It is agreed that use of the word ‘may’ would provide a discretion to mitigate a penalty. However, the word ‘may’ is not found in the relevant sanction which relates to the precise contravention of the Manual being, “Following the completion of Round 1, exceeding the Points cap in any one round in a grade and/or colts results in the loss of five(5) Competition points and the respective Championship points and a penalty of $100.”

38. The language in the last two sanctions is relevantly different in that a finding of a relevant contravention “may result” in sanctions being imposed by the Board. The use of the word “may” is telling as it is a word, in such context, which reposes a discretion in the decision maker as what is to be done to penalise or otherwise deal with a contravention .

39. I am also asked to consider a precedent in relation to a Colts player from the Sydney University Football Club (SUFC) in the Finals in the 2023 season. There was a breach of the Player Points System and the then Board exercised a discretion not to impose what would appear to mandatory penalty being an automatic forfeit in a Finals fixture. Firstly, that decision does not relate to the contravention under focus by the Decision, this matter does not relate to a Finals’ fixture. That particular sanction is not found in the 2024 Manual. However, that 2023 decision of the Board might be a means of interpreting the relevant provisions of the Manual. The rights and obligations established under the Manual are to be interpreted according to the established principles of contractual interpretation. The use of post-contractual conduct is rarely relevant to interpret the terms of a contract. (see CFMMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 165) Exceptions to this principle might arise under the headings of waiver or custom and practice. A reliance upon one decision of the Board involving different parties and a different and repealed term of the manual hardly establishes a ‘custom and practice’. Also a reliance upon anecdotal evidence as what might have occurred at other times, one instance said to have occurred in 2002 involving similar circumstances is not persuasive to overcome the language used in the Manual.

40. This conclusion unfortunately does not therefore permit an examination of the strong mitigating factors as submitted in Easts’ Reply and found in the statement of its Head Coach Mr. Ben Batger. There was no attempt to exploit the Points system. What happened appeared to be based on some confusion and was an honest, albeit an avoidable, mistake. However, because of the peremptory wording of the sanction for the relevant contravention no discretion can be used to
alleviate the mandatory sanction.

41. Finally, I have taken into account all the submissions both in chief, in reply and in response by the SRU and the Clubs all of which were given
to each other in order to comply with the principles of natural justice.

42. I therefore find that the Decision of the Board to exercise a discretion not to impose the sanction on Easts in the first grade competition and
the Championship proper in relation to contravention of the Points Player System was contrary to the terms of the Manual and as a consequence was null and void.

Recommendations
43. I therefore make the following recommendations to the SRU Board;
(i) The Board vacate the Decision of the 19 July 2024.
(ii) In lieu thereof, the Board impose the sanction as set out in Clause 11 of the Manual on Easts for this contravention in the First Grade
Competition “being the loss of five (5) Competition points and the respective Championship points and a penalty of $100″.
(iii) That for benefit of the Clubs to avoid confusion Clause 1 of the Manual be amended to provide that Player Points System allocation of points is to rely upon information provided by Opta Rugby.
(iv) Should the Board or other authority it appoints in the future wish to have a discretion in relation to the current issue the terms of the second sanction in Clause 11.4 be amended to read as follows;
“Following the completion of Round 1 exceeding the Points cap in any one round in a grade or colts fixture may result in the loss of five (5) Competition points and the respective Championship points and a penalty of $100.”

Jeffrey Phillips, SC

State Chambers, Sydney Independent Reviewer

Document Index

A – As per the Terms of Reference the reviewer has been provided the following documentation:

Sydney Rugby Union 2024 Operations Manual

Sydney Rugby Union Constitution

Letter dated 21 August 2023 – all Premiership Clubs re Sydney University Football Club (SUFC) Player Points

SUFC Appeal

Letter dated 24 October 2023 – SUFC Player points appeal

Letter dated 15 July 2024 sent to Eastern Suburbs Rugby Club

Letter dated 15 July 2024 received from Eastern Suburbs Rugby Club

Letter dated 19 July 2024 sent to Eastern Suburbs Rugby Club

Letter dated 19 July 2024 sent to all Premiership Clubs

Letter dated 22 July 2024 sent to all Premiership Clubs

Following 30 July 2024 the review has been provided with the following documentation and communications:

Letter dated 31 July 2024 received from Eastern Suburbs Rugby Club

Letter dated 1 August 2024 sent to Eastern Suburbs Rugby Club

Letter dated 3 August 2024 received from Eastern Suburbs Rugby Club

Letter dated 5 August sent to Eastern Suburbs Rugby Club

Letter dated 5 August received from Eastern Suburbs Rugby Club

Letter dated 6 August sent to Eastern Suburbs Rugby Club

B – Official Submissions Submitted

30 July 2024 Warringah Rugby Club

31 July 2024 Southern Districts Premier Rugby

1 August 2024 Sydney Rugby Union Sydney Uni Precedence Submission

1 August 2024 Eastwood Rugby

1 August 2024 The Highlanders – Gordon Rugby Club

7 August 2024 Eastern Suburbs DRUFC

7 August 2024 Statement of Ben Batger

8 August 2024 Sydney Rugby Union reply to Eastern Suburbs DRUFC submission

8 August 2024 Eastwood Rugby reply to Eastern Suburbs DRUFC submission

8 August 2024 Warringah Rugby Club reply to Eastern Suburbs DRUFC submission

9 August 2024 The Highlanders – Gordon Ruby Club Reply to Eastern Suburbs DRUFC submission

C – 1 August 2024 Sydney Rugby Union Easts Chronology Submission

I delivered this paper on Judicial Bullying at the Amora Hotel Jamison Sydney to the annual conference of New South Wales Magistrates under the auspices of the Judicial Commission of New South Wales on the 4th August 2017.

This is a paper I presented at the Employment Law Seminar, Law Society of New South Wales on: Professional Ethics and Responsibilities Of Lawyers Who Bully (Including Judges)

On New Years Day 2014 in Australia new laws governing workplaces came into force dealing with bullying. These new laws which amended the Fair Work Act  are within the jurisdiction of the Fair Work Commission(Commission) and will be of importance in advising clients how to manage these changes and how to represent them in the Commission.

About 15 years ago a few Sydney barristers were startled to discover  that taxation laws not only applied to them but also not to comply with the obligations required by the  revenue authorities  might imperil their professional standing and right to practice. In the same way these new “anti-bullying” laws either directly or by analogy dictate how we behave as employers of our staff and how as lawyers we deal with each other ,clients, witnesses and others with whom we have contact “at work”.The passing of these laws perhaps gives us all a chance to pause and consider how members of our profession, including judges behave at work.

Last year the newly re-installed Prime Minister, Kevin Rudd, in the dying days of the  43^rd Australian Parliament made this statement to the Parliament :

“Political life is a very hard life, a very hard life indeed. … Let us all remember particularly on days like this that in this Parliament, and in this place, we are all human beings, we all have families and we all have emotions, so let us try – just try – to be a little kinder and gentler with each other in the further deliberations of this Parliament.”[1]

Rudd’s comments seeking a kinder and a gentler place echoed the remarks made in a couple of valedictory speeches made by retiring members of that Parliament.

The National Party member for the Queensland seat of Hinkler, Paul Neville, in a generous speech traversing a distinguished career, praised both his political allies and his foes.  However, he made this comment:

“As I leave this Parliament, I pray that in subsequent Parliaments we see a return to civility in this place.  Surely it is not beyond our capacity to make Question Time what it should be – an enlisting of information rather than the forum for meaningless spin and invective. Like it or not it is a vehicle by which the public judge us because that is the forum of Parliament that we often see.  Surely we can do as great a job as New Zealand, Canada, UK and France.  Despite the expectation of the new paradigm, it gets progressively worse with each Parliament.”[2]

Alex Somlyay, another Queenslander equally made a plea to Parliamentarians to respect each other more than what had been his recent experience.[3]

Perhaps the departing parliamentarians who  stressed this  focus upon treating each other better  may have had in mind the passing of this legislation.

The amendments to the Act adopts a definition of workplace bullying of someone being   bullied at work if an individual or group of individuals repeatedly behaves unreasonably ,and the behaviour creates a risk to health and safety.The changes explicitly excludes from the definition of workplace bullying “reasonable management action carried out in a reasonable manner”, a provision which aims to recognise the need for managers to be able to give instructions to their workers. Disciplinary action or action taken in response to poor performance is not sought to be regulated under the Amendment Act, which recognises the rights and obligations of managers to give reasonable direction or feedback to workers.

The powers of the Commission in dealing with the applications is not to make pecuniary awards but to make orders which stop the offending behaviour and put in place mechanisms to avoid such actions happening again.

Types of orders the Commission may make include, for example:

• the individual or group of individuals stop the specified behaviour;

• regular monitoring of behaviours by an employer;

• compliance with a workplace bullying policy;

• the provision of information and additional support and training; or

• review of existing workplace bullying policies.

Should the Commission make an order that workplace bullying cease, and that order is contravened, a person affected by the contravention, a health and safety inspector or an industrial association may seek a remedy in court. Civil remedy provisions enlivened by a breach of an orderwill attract maximum monetary penalties of $10,200 for individuals and $51,000 for companies.

One of the chief hazards facing lawyers  is to suffer a work-related psychological injury. Accordingly these new laws deal with the behaviours which give rise to such a risk and how to curb it. If some retiring politicians have spoken about the loss of civility in public life we as lawyers should take note . We should recognise that community expectations have changed and that aspects of the way some lawyers have behaved   in and out of the court room need to be adjusted.On account of this change of expectations the behaviour of lawyers will I predict be a new area of professional disciplinary concern as it already has for some members of the judiciary.

It is some years ago now that I wrote an article about bullying in the courtroom for the NSW Law Society Journal (December 2004) entitled “Of Dinosaurs and Bullying Judges”. The article received close attention by both the print and electronic media. I received many letters and phone calls from practitioners about the piece. A few days after its publication, a former head of my chambers, who had become a judge in the Supreme Court passed me on Phillip Street  and said “Good morning Jeffrey, I read your article, we all did”. Ominously, he then said “We are waiting for you”.

The subject of bullying in the workplace has been the subject of much comment and litigation over the past twenty years or so. Depending upon a victim’s pre-disposition or fragility bullying behaviour can be the cause of psychological injury. The legal test as to whether an event can cause psychological injury is undemanding. In State Transit Authority of NSW v Chemler [2007] NSWCA 249 Spigelman CJ said that employers take their employees as they find them. There’s an ‘egg-shell psyche’ principle which is equivalent to the ‘egg-shell skull’ principle [40]. Further, Justice Basten said that where events actually occurred in the workplace, if perceived by the victim as creating an offensive or hostile working environment, and a psychological injury followed, it is open to conclude that causation is established. [69].

This paper deals with not only bullying by judges, but also by lawyers . Such behaviour occurs with respect to the following relationships, lawyer against lawyer, lawyer against client, lawyer against witness, lawyer against partner or employee and judge against others. In his confirmation hearings before the United States Senate, Chief Justice John Roberts said that:

“Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

He went on to say that his role on the Supreme Court would be characterised by “modesty and humility”.[4] If the judge is the ultimate umpire of a courtroom it is up to the judge to set the tone of proceedings. Provisions exist to make sure that the advocates and the witnesses behave themselves with respect to each other and to the court. The difficulty always arises when it is the judge whose behaviour causes concern.

Ian Barker QC writing in chapter 22 of Appealing to the Future: Michael Kirby and his Legacy[5] said:

“Personally I have found practice as a barrister to involve as much unpleasantness as goodwill. To say “I love the law” rather glosses over the many occasions when loving the law is as difficult as loving some of its judges. As I see it, if a barrister does not enter the profession suffering from some bipolar disorder, the chances are he or she will eventually leave it enduring at least some form of depression.”

He went on to describe displays of judicial bullying exhibited by at least two members of the Court of Appeal which was dealing with an application to strike off a barrister for misconduct.[6] Barker recounts the application made by the barrister’s counsel, L J (Bill) Priestley QC, who applied to have the President Sir Athol Moffit and Justice Ray Reynolds disqualify themselves because of pre-judgment of the conduct of the barrister in an adverse finding in the Wendy Bacon trial. Barker said that their reaction to this application as being “sarcastic, contemptuous and personally abusive of counsel”. As observers saw it, the conduct of the two judges, particularly Moffit P was a disgraceful display of “judicial savagery”[7] He contrasted their behaviour to the change in the atmosphere of the NSW Court of Appeal when Michael Kirby was appointed its President. He quotes from a speech made by another judge of the Court of Appeal, Dennis Mahoney at the unveiling of a portrait of Kirby in the Bar Association common room:

“During the Kirby Presidency there was a change in the kindness…..the courtesy… shown to the Bar. In earlier times, when I was in practice at the Bar, one did not expect kindness from the Bench. That was not the custom. Those who remember their appearances before Sir Alan Taylor, Sir Frank Kitto and later before Sir Garfield Barwick will understand what I mean. The Court of Appeal, understandably perhaps, adopted a similar ethos. The Moffit Court believed that one procured most help from the Bar by the whip rather than a kind word. Perhaps that was right.

Under Kirby’s Presidency that changed. The Court of Appeal became a different place. There was courtesy amounting often to kindness. I do not argue whether this was a good thing. One may argue for and against discipline. But under the Kirby Presidency the ethos of the Court changed. And a patient courtesy in a Court is no small thing. For myself I found the Court to be a more pleasant place in which to be.”

Despite the courtesy and change of tone evidenced by the Kirby Court of Appeal excesses can still occur, more recent, infamous examples in New South Wales were the two magistrates whose behaviour caused them to appear before the NSW Parliament pleading for their positions. One of the magistrates as reported by Richard Ackland in The Age of 17 June 2011, was plainly abusive of an unrepresented person, whereas another delighted in embarrassing litigants and pressuring them to resolve their matters. Perhaps these magistrates’ cases, because of the existence of the Judicial Commission legislation, may give other judges cause to be concerned that their own courtroom behaviour may come under such scrutiny.

This is not only an Australian problem. In the same New Yorker article quoted above it was said that when Antonin Scalia was appointed in 1986 he brought a new “gladiatorial spirit” to the US Supreme Court. However, in the Senate confirmation hearings of President Obama’s choice of Sonia Sotomayor to the  Supreme Court  in 2009 she was closely questioned about her temperament by Senator Lindsey Graham (Republican-South Carolina ).He put to her an article which said that she was a terror on the bench, a bit of a bully. “You stand out on the 2^ndCircuit like a sore thumb”. Sotomayor agreed she was a challenger of counsel and asked tough questions, but the 2^nd Circuit was a “Hot bench” she said. It was stated about her in the New York Timesof May 27 2009 by Gerard N Magliocca,  “But a judge who does not probe a lawyer’s case and expose its weaknesses is not doing her job” . Judge Sotomayor was confirmed. However, a year later a real Judge Judy, Judge Judith Raub Eiler was suspended from her judicial duties by the Washington State Supreme Court for five days without pay on charges brought by the State Commission on Judicial Conduct for engaging in “a pattern or practice of rude, impatient and undignified treatment” of people who appeared before her.

One can understand in many courts how judges can have their patience tried by rude litigants, ill prepared or impunctual practitioners or practitioners engaging in bullying behaviour themselves. Some lawyers can be infuriating. To set a better tone in the court room cross-examination  needs to be conducted in a more civilised manner than what has been the robust approach in the past. Cross-examiners who shout or abuse witnesses should be stopped by the judge acting as a true umpire .Even Rugby League has abolished the shoulder charge. Many practitioners once they step foot in the courtroom seem to have a bad case of “white line fever” common in the sporting arena and  regard cross-examination as the last  legal  blood sport . Counsel who have high-conflict personalities may infect the whole process and in turn may become judges with high conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed.  One is not expecting lawyers and judges to sign up with the World Kindness Movement. Stress in our work and in the court room is  necessary and assists to get work done efficiently, but one needs to learn and note the signs  when stress turns to distress. Too much work with poor administrative assistance affects many in our profession.  Many courts are being squeezed by government budgetary restraints. In many courts more cases are being tried by less judges. As judges and advocates we must, like anyone else demand safer workplaces. We must treat each other better and with dignity. Litigation should not be another form of unarmed combat. We must stand up for our rights to demand safer workplaces otherwise the depressed fate of lawyers as identified by Ian Barker awaits many of us.

The judges are responding to this well-recognised problem in our society. In early February last year the National Judicial College of Australia devoted its annual conference at the Australian National University to ‘Managing People in Court’. One of the sessions dealt with “Overbearing Conduct inCourt by Judges and Lawyers’. Justice Glenn Martin of the Queensland Supreme Court who had formerly been President of the Queensland Bar Association had been confronted with a complaint from a relatively junior barrister who when he stood up to make his final submissions was met with this remark by the judge; “You’re an idiot. Do your clients know you’re an idiot?”.

That was an extreme example of rudeness. In dealing with such behaviour Justice Martin said:

“There is a line between rudeness and the judicial anxiety to move a case along. There is a line between the proper management of a trial and bullying. These lines can be sharp and bright or broad and grey. The nature of the lines is dependent upon the circumstances of the trial, the nature of the matter being adjudicated, the stage which the trial has reached, the length of the trial, the complexity of the trial and a myriad other circumstances which can develop and which are so varied that any definition of bullying or overbearing conduct will necessarily be very permeable.”

In considering why judges behave poorly in court Justice Martin said it may be more for the opinion of a psychologist than of another judge however it was well recognised that:

“Some judges seem to need to vent for the first half hour or so, after which the day settles into a reasonably harmonious programme. Others are more Vesuvian, and are liable to unexplained and irregular eruptions which can cover the courtroom with judicial ash. Was it due to a lack of maternal love or are they just miserable bastards?”

However, one is necessarily reluctant to complain however that is a function that the Bar Association or Law Society are set up to do, in theory to protect their members. Justice Martin went on to say that:

“Most judicial officers who engage in this type of behaviour are repeat offenders. They are known to the profession and, often, to the head of jurisdiction. With respect to one such person, I was encouraged to report any complaints because the head of that court was concerned and wanted to have a case to put to the judge in question. Even if such a request is not made it is tactically better, and more likely to reduce the likelihood of repercussion to individuals, to provide as many examples as possible. It is the same as mounting any sort of case. Detailed particulars and the use of only the strongest examples will be more likely to result in success.”

Of course in New South Wales in addition to these informal processes we have the Judicial Commission. Although the ultimate remedy of dismissal of a judicial officer is cumbersome .It is  curtailed by the need for that to be done by a Parliament which in New South Wales is colloquially known as the “Bear Pit” and is hardly the best body to deliberate upon bullying behaviour.

The editor of the Australian Law Journal, Acting Justice Peter Young commented upon Justice Martin’s paper in the June 2013 edition ( 87 ALJ 371-372 ).He wrote,

“However, a judge who is considered weak will be exploited by the Bar. When I was firstappointed in 1985 I was speaking with a judge who had been appointed the previous year. He told me of his problems with the Bar. I considered his problems were caused by him being too nice. I put in place a strategy to show I was not prepared to be trifled with. This succeeded in that I soon got a reputation for expecting good work and being unsympathetic to those who fell short of proper standards. A thought that often flows through my mind is: “He or she is being paid thousands of dollars in this brief. The presentation shows very poor preparation, and he or she is really just dumping all the difficulties in my lap, without giving me proper assistance. Why should I accept that lying down?”Sometimes the thought grew into my expressing to the advocate that I expected him or her to have given me more assistance. Doubtless some of the advocates would have classed that as bullying.Some years ago Norman, a senior clergyman, stated that he had never become a bishop as he was“not a big enough bastard”. In reply the Diocesan Bishop said: “Norman, sometimes you’ve got to be. It’s the same with judges.”

In trying to formulate an answer to this issue he said as follows,

“There appears to be a serious problem for 21st-century advocates shown by the rates of suicide and mental breakdown of lawyers. However, we must be careful not to class every factor which may have exacerbated the breakdown of fragile personality as bullying. Further, it may be that the Barristers’ Admission Boards should insist on a psychological assessment of candidates to weed out those who are unable to cope with critical comments from the judiciary.”

I struggle to believe that Young J’s approach is correct either emotionally  or legally. Perhaps like in the movie Jurassic Park  dinosaurs still walk across Queen’s Square to work .At the same National Judicial College conference earlier this the ANU’s Professor Tony Foley spoke of recent studies of anxiety amongst recently admitted legal practitioners. He offered the tragic 2010 example of a young solicitor employed by The WA Legal Aid Office (the Office) who had been berated by a magistrate whose behaviour was causally linked to the solicitor’s suicide.

Professor Foley identified that:

“As a consequence, that Office has put in place a proactive support scheme to protect their young lawyers and provide them with some resilience strategies. Their policy and practice for addressing the issue provides one example of how to respond to judicial bullying:

What Legal Aid WA management is essentially doing is accepting that from their young lawyers’ point of view that it is an issue. They have sought to raise awareness that bullying is unacceptable, and they have developed some policies to address its occurrence. They have normalised a culture that says bullying is not acceptable, which says ‘we are not going to accept that our young lawyers or indeed our lawyers generally are bullied’.”

To address allegations of bullying they have implemented what they say is a routine ‘Incident reporting protocol’. So if a young lawyer claims they have been bullied in court, when they come back to the Office reporting the incident is standard practice. They are counselled and the complaint is taken seriously. The Office obtains a transcript – occasionally including the audio tape (lawyers would be well aware that often the transcript might not pick up what might be some aggressive language in the courtroom).If they feel that there is a foundation for a complaint then a complaint is made to the relevant chief judge or magistrate. In addition to this responsiveness there has been initial safety and effective interaction training for their lawyers and paralegals conducted and designed to assist their lawyers to feel confident in their own capacity. These were followed by group sessions led by a psychologist to encourage the young lawyers to consider questions such as ‘How well am I? How do I get help?’ and provide them with tools and insights designed to improve their resilience.

Legal Aid WA continues to monitor the safety and resilience of their young lawyers. Part of the training program for their graduate lawyers is a weekly training day and a compulsory and regular part of that training program now includes a session on ‘How are you travelling?’ ‘What have been your experiences in the courtroom?’

All this is positive. Having a program and actively implementing anti-bullying processes works. Research confirms such processes can have a significant and positive effect on the prevalence of workplace bullying, including in the lawyer’s workplace of the courtroom.[8]”

These protocols may be useful to follow in other law practices particularly with junior practitioners to prepare them for the rigours of legal practice. A duty of care exists at common law to ensure that an employee is capable of the work they have been given and when they need assistance.

However, despite these studies it is just not only junior lawyers who can suffer from anxiety and depression contributed to by events in and around the courtroom. Many  older lawyers perhaps have had coping mechanisms in place for many years to steel one for the courtroom drama. After years of managing a busy practice  it can all get too much. Burn out, self-medication or worse may occur. Sometimes coping  mechanisms can malfunction if there are other pressures  of a personal  or financial kind imposing themselves upon one’s psyche.A bad day in court before a recalcitrant, bullying judge may be the psychological tipping point.  The foregoing is useful to comply with our own and if relevant our employers’ duties under the Work Health and Safety Act(NSW) 2011.Under that statute one must  identify risks in our work places and to remove or moderate them. However, more fundamentally it is far more beneficial   for own and our colleagues’ health and welfare to be aware of this problem, to call it for what it is  and to do our part to change the culture which permits it to happen.

On New Years Day 2014 in Australia new laws governing workplaces came into force dealing with bullying. These new laws which amended the Fair Work Act  are within the jurisdiction of the Fair Work Commission(Commission) and will be of importance in advising clients how to manage these changes and how to represent them in the Commission.

About 15 years ago a few Sydney barristers were startled to discover  that taxation laws not only applied to them but also not to comply with the obligations required by the  revenue authorities  might imperil their professional standing and right to practice. In the same way these new “anti-bullying” laws either directly or by analogy dictate how we behave as employers of our staff and how as lawyers we deal with each other ,clients, witnesses and others with whom we have contact “at work”.The passing of these laws perhaps gives us all a chance to pause and consider how members of our profession, including judges behave at work.

Last year the newly re-installed Prime Minister, Kevin Rudd, in the dying days of the  43^rd Australian Parliament made this statement to the Parliament :

 “Political life is a very hard life, a very hard life indeed. … Let us all remember particularly on days like this that in this Parliament, and in this place, we are all human beings, we all have families and we all have emotions, so let us try – just try – to be a little kinder and gentler with each other in the further deliberations of this Parliament.”[1]

Rudd’s comments seeking a kinder and a gentler place echoed the remarks made in a couple of valedictory speeches made by retiring members of that Parliament.

The National Party member for the Queensland seat of Hinkler, Paul Neville, in a generous speech traversing a distinguished career, praised both his political allies and his foes.  However, he made this comment:

“As I leave this Parliament, I pray that in subsequent Parliaments we see a return to civility in this place.  Surely it is not beyond our capacity to make Question Time what it should be – an enlisting of information rather than the forum for meaningless spin and invective. Like it or not it is a vehicle by which the public judge us because that is the forum of Parliament that we often see.  Surely we can do as great a job as New Zealand, Canada, UK and France.  Despite the expectation of the new paradigm, it gets progressively worse with each Parliament.”[2]

Alex Somlyay, another Queenslander equally made a plea to Parliamentarians to respect each other more than what had been his recent experience.[3]

Perhaps the departing parliamentarians who  stressed this  focus upon treating each other better  may have had in mind the passing of this legislation.

The amendments to the Act adopts a definition of workplace bullying of someone being   bullied at work if an individual or group of individuals repeatedly behaves unreasonably ,and the behaviour creates a risk to health and safety.The changes explicitly excludes from the definition of workplace bullying “reasonable management action carried out in a reasonable manner”, a provision which aims to recognise the need for managers to be able to give instructions to their workers. Disciplinary action or action taken in response to poor performance is not sought to be regulated under the Amendment Act, which recognises the rights and obligations of managers to give reasonable direction or feedback to workers.

The powers of the Commission in dealing with the applications is not to make pecuniary awards but to make orders which stop the offending behaviour and put in place mechanisms to avoid such actions happening again.

Types of orders the Commission may make include, for example:

• the individual or group of individuals stop the specified behaviour;

• regular monitoring of behaviours by an employer;

• compliance with a workplace bullying policy;

• the provision of information and additional support and training; or

• review of existing workplace bullying policies.

Should the Commission make an order that workplace bullying cease, and that order is contravened, a person affected by the contravention, a health and safety inspector or an industrial association may seek a remedy in court. Civil remedy provisions enlivened by a breach of an orderwill attract maximum monetary penalties of $10,200 for individuals and $51,000 for companies.

One of the chief hazards facing lawyers  is to suffer a work-related psychological injury. Accordingly these new laws deal with the behaviours which give rise to such a risk and how to curb it. If some retiring politicians have spoken about the loss of civility in public life we as lawyers should take note . We should recognise that community expectations have changed and that aspects of the way some lawyers have behaved   in and out of the court room need to be adjusted.On account of this change of expectations the behaviour of lawyers will I predict be a new area of professional disciplinary concern as it already has for some members of the judiciary.

It is some years ago now that I wrote an article about bullying in the courtroom for the NSW Law Society Journal (December 2004) entitled “Of Dinosaurs and Bullying Judges”. The article received close attention by both the print and electronic media. I received many letters and phone calls from practitioners about the piece. A few days after its publication, a former head of my chambers, who had become a judge in the Supreme Court passed me on Phillip Street  and said “Good morning Jeffrey, I read your article, we all did”. Ominously, he then said “We are waiting for you”.

The subject of bullying in the workplace has been the subject of much comment and litigation over the past twenty years or so. Depending upon a victim’s pre-disposition or fragility bullying behaviour can be the cause of psychological injury. The legal test as to whether an event can cause psychological injury is undemanding. In State Transit Authority of NSW v Chemler [2007] NSWCA 249 Spigelman CJ said that employers take their employees as they find them. There’s an ‘egg-shell psyche’ principle which is equivalent to the ‘egg-shell skull’ principle [40]. Further, Justice Basten said that where events actually occurred in the workplace, if perceived by the victim as creating an offensive or hostile working environment, and a psychological injury followed, it is open to conclude that causation is established. [69].

This paper deals with not only bullying by judges, but also by lawyers . Such behaviour occurs with respect to the following relationships, lawyer against lawyer, lawyer against client, lawyer against witness, lawyer against partner or employee and judge against others. In his confirmation hearings before the United States Senate, Chief Justice John Roberts said that:

 “Judges are like umpires. Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”

He went on to say that his role on the Supreme Court would be characterised by “modesty and humility”.[4] If the judge is the ultimate umpire of a courtroom it is up to the judge to set the tone of proceedings. Provisions exist to make sure that the advocates and the witnesses behave themselves with respect to each other and to the court. The difficulty always arises when it is the judge whose behaviour causes concern.

 Ian Barker QC writing in chapter 22 of Appealing to the Future: Michael Kirby and his Legacy[5] said:

“Personally I have found practice as a barrister to involve as much unpleasantness as goodwill. To say “I love the law” rather glosses over the many occasions when loving the law is as difficult as loving some of its judges. As I see it, if a barrister does not enter the profession suffering from some bipolar disorder, the chances are he or she will eventually leave it enduring at least some form of depression.”

He went on to describe displays of judicial bullying exhibited by at least two members of the Court of Appeal which was dealing with an application to strike off a barrister for misconduct.[6] Barker recounts the application made by the barrister’s counsel, L J (Bill) Priestley QC, who applied to have the President Sir Athol Moffit and Justice Ray Reynolds disqualify themselves because of pre-judgment of the conduct of the barrister in an adverse finding in the Wendy Bacon trial. Barker said that their reaction to this application as being “sarcastic, contemptuous and personally abusive of counsel”. As observers saw it, the conduct of the two judges, particularly Moffit P was a disgraceful display of “judicial savagery”[7] He contrasted their behaviour to the change in the atmosphere of the NSW Court of Appeal when Michael Kirby was appointed its President. He quotes from a speech made by another judge of the Court of Appeal, Dennis Mahoney at the unveiling of a portrait of Kirby in the Bar Association common room:

“During the Kirby Presidency there was a change in the kindness…..the courtesy… shown to the Bar. In earlier times, when I was in practice at the Bar, one did not expect kindness from the Bench. That was not the custom. Those who remember their appearances before Sir Alan Taylor, Sir Frank Kitto and later before Sir Garfield Barwick will understand what I mean. The Court of Appeal, understandably perhaps, adopted a similar ethos. The Moffit Court believed that one procured most help from the Bar by the whip rather than a kind word. Perhaps that was right.

Under Kirby’s Presidency that changed. The Court of Appeal became a different place. There was courtesy amounting often to kindness. I do not argue whether this was a good thing. One may argue for and against discipline. But under the Kirby Presidency the ethos of the Court changed. And a patient courtesy in a Court is no small thing. For myself I found the Court to be a more pleasant place in which to be.”

Despite the courtesy and change of tone evidenced by the Kirby Court of Appeal excesses can still occur, more recent, infamous examples in New South Wales were the two magistrates whose behaviour caused them to appear before the NSW Parliament pleading for their positions. One of the magistrates as reported by Richard Ackland in The Age of 17 June 2011, was plainly abusive of an unrepresented person, whereas another delighted in embarrassing litigants and pressuring them to resolve their matters. Perhaps these magistrates’ cases, because of the existence of the Judicial Commission legislation, may give other judges cause to be concerned that their own courtroom behaviour may come under such scrutiny.

This is not only an Australian problem. In the same New Yorker article quoted above it was said that when Antonin Scalia was appointed in 1986 he brought a new “gladiatorial spirit” to the US Supreme Court. However, in the Senate confirmation hearings of President Obama’s choice of Sonia Sotomayor to the  Supreme Court  in 2009 she was closely questioned about her temperament by Senator Lindsey Graham (Republican-South Carolina ).He put to her an article which said that she was a terror on the bench, a bit of a bully. “You stand out on the 2^ndCircuit like a sore thumb”. Sotomayor agreed she was a challenger of counsel and asked tough questions, but the 2^nd Circuit was a “Hot bench” she said. It was stated about her in the New York Timesof May 27 2009 by Gerard N Magliocca,  “But a judge who does not probe a lawyer’s case and expose its weaknesses is not doing her job” . Judge Sotomayor was confirmed. However, a year later a real Judge Judy, Judge Judith Raub Eiler was suspended from her judicial duties by the Washington State Supreme Court for five days without pay on charges brought by the State Commission on Judicial Conduct for engaging in “a pattern or practice of rude, impatient and undignified treatment” of people who appeared before her.

One can understand in many courts how judges can have their patience tried by rude litigants, ill prepared or impunctual practitioners or practitioners engaging in bullying behaviour themselves. Some lawyers can be infuriating. To set a better tone in the court room cross-examination  needs to be conducted in a more civilised manner than what has been the robust approach in the past. Cross-examiners who shout or abuse witnesses should be stopped by the judge acting as a true umpire .Even Rugby League has abolished the shoulder charge. Many practitioners once they step foot in the courtroom seem to have a bad case of “white line fever” common in the sporting arena and  regard cross-examination as the last  legal  blood sport . Counsel who have high-conflict personalities may infect the whole process and in turn may become judges with high conflict personalities. One can understand that in a busy courtroom and in difficult cases tempers can get frayed.  One is not expecting lawyers and judges to sign up with the World Kindness Movement. Stress in our work and in the court room is  necessary and assists to get work done efficiently, but one needs to learn and note the signs  when stress turns to distress. Too much work with poor administrative assistance affects many in our profession.  Many courts are being squeezed by government budgetary restraints. In many courts more cases are being tried by less judges. As judges and advocates we must, like anyone else demand safer workplaces. We must treat each other better and with dignity. Litigation should not be another form of unarmed combat. We must stand up for our rights to demand safer workplaces otherwise the depressed fate of lawyers as identified by Ian Barker awaits many of us.

The judges are responding to this well-recognised problem in our society. In early February last year the National Judicial College of Australia devoted its annual conference at the Australian National University to ‘Managing People in Court’. One of the sessions dealt with “Overbearing Conduct inCourt by Judges and Lawyers’. Justice Glenn Martin of the Queensland Supreme Court who had formerly been President of the Queensland Bar Association had been confronted with a complaint from a relatively junior barrister who when he stood up to make his final submissions was met with this remark by the judge; “You’re an idiot. Do your clients know you’re an idiot?”.

 That was an extreme example of rudeness. In dealing with such behaviour Justice Martin said:

“There is a line between rudeness and the judicial anxiety to move a case along. There is a line between the proper management of a trial and bullying. These lines can be sharp and bright or broad and grey. The nature of the lines is dependent upon the circumstances of the trial, the nature of the matter being adjudicated, the stage which the trial has reached, the length of the trial, the complexity of the trial and a myriad other circumstances which can develop and which are so varied that any definition of bullying or overbearing conduct will necessarily be very permeable.”

In considering why judges behave poorly in court Justice Martin said it may be more for the opinion of a psychologist than of another judge however it was well recognised that:

“Some judges seem to need to vent for the first half hour or so, after which the day settles into a reasonably harmonious programme. Others are more Vesuvian, and are liable to unexplained and irregular eruptions which can cover the courtroom with judicial ash. Was it due to a lack of maternal love or are they just miserable bastards?”

However, one is necessarily reluctant to complain however that is a function that the Bar Association or Law Society are set up to do, in theory to protect their members. Justice Martin went on to say that:

“Most judicial officers who engage in this type of behaviour are repeat offenders. They are known to the profession and, often, to the head of jurisdiction. With respect to one such person, I was encouraged to report any complaints because the head of that court was concerned and wanted to have a case to put to the judge in question. Even if such a request is not made it is tactically better, and more likely to reduce the likelihood of repercussion to individuals, to provide as many examples as possible. It is the same as mounting any sort of case. Detailed particulars and the use of only the strongest examples will be more likely to result in success.”

Of course in New South Wales in addition to these informal processes we have the Judicial Commission. Although the ultimate remedy of dismissal of a judicial officer is cumbersome .It is  curtailed by the need for that to be done by a Parliament which in New South Wales is colloquially known as the “Bear Pit” and is hardly the best body to deliberate upon bullying behaviour.

The editor of the Australian Law Journal, Acting Justice Peter Young commented upon Justice Martin’s paper in the June 2013 edition ( 87 ALJ 371-372 ).He wrote,

“However, a judge who is considered weak will be exploited by the Bar. When I was firstappointed in 1985 I was speaking with a judge who had been appointed the previous year. He told me of his problems with the Bar. I considered his problems were caused by him being too nice. I put in place a strategy to show I was not prepared to be trifled with. This succeeded in that I soon got a reputation for expecting good work and being unsympathetic to those who fell short of proper standards. A thought that often flows through my mind is: “He or she is being paid thousands of dollars in this brief. The presentation shows very poor preparation, and he or she is really just dumping all the difficulties in my lap, without giving me proper assistance. Why should I accept that lying down?”Sometimes the thought grew into my expressing to the advocate that I expected him or her to have given me more assistance. Doubtless some of the advocates would have classed that as bullying.Some years ago Norman, a senior clergyman, stated that he had never become a bishop as he was“not a big enough bastard”. In reply the Diocesan Bishop said: “Norman, sometimes you’ve got to be. It’s the same with judges.”

In trying to formulate an answer to this issue he said as follows,

“There appears to be a serious problem for 21st-century advocates shown by the rates of suicide and mental breakdown of lawyers. However, we must be careful not to class every factor which may have exacerbated the breakdown of fragile personality as bullying. Further, it may be that the Barristers’ Admission Boards should insist on a psychological assessment of candidates to weed out those who are unable to cope with critical comments from the judiciary.”

I struggle to believe that Young J’s approach is correct either emotionally  or legally. Perhaps like in the movie Jurassic Park  dinosaurs still walk across Queen’s Square to work .At the same National Judicial College conference earlier this the ANU’s Professor Tony Foley spoke of recent studies of anxiety amongst recently admitted legal practitioners. He offered the tragic 2010 example of a young solicitor employed by The WA Legal Aid Office (the Office) who had been berated by a magistrate whose behaviour was causally linked to the solicitor’s suicide.

 Professor Foley identified that:

“As a consequence, that Office has put in place a proactive support scheme to protect their young lawyers and provide them with some resilience strategies. Their policy and practice for addressing the issue provides one example of how to respond to judicial bullying:

What Legal Aid WA management is essentially doing is accepting that from their young lawyers’ point of view that it is an issue. They have sought to raise awareness that bullying is unacceptable, and they have developed some policies to address its occurrence. They have normalised a culture that says bullying is not acceptable, which says ‘we are not going to accept that our young lawyers or indeed our lawyers generally are bullied’.”

To address allegations of bullying they have implemented what they say is a routine ‘Incident reporting protocol’. So if a young lawyer claims they have been bullied in court, when they come back to the Office reporting the incident is standard practice. They are counselled and the complaint is taken seriously. The Office obtains a transcript – occasionally including the audio tape (lawyers would be well aware that often the transcript might not pick up what might be some aggressive language in the courtroom).If they feel that there is a foundation for a complaint then a complaint is made to the relevant chief judge or magistrate. In addition to this responsiveness there has been initial safety and effective interaction training for their lawyers and paralegals conducted and designed to assist their lawyers to feel confident in their own capacity. These were followed by group sessions led by a psychologist to encourage the young lawyers to consider questions such as ‘How well am I? How do I get help?’ and provide them with tools and insights designed to improve their resilience.

Legal Aid WA continues to monitor the safety and resilience of their young lawyers. Part of the training program for their graduate lawyers is a weekly training day and a compulsory and regular part of that training program now includes a session on ‘How are you travelling?’ ‘What have been your experiences in the courtroom?’

All this is positive. Having a program and actively implementing anti-bullying processes works. Research confirms such processes can have a significant and positive effect on the prevalence of workplace bullying, including in the lawyer’s workplace of the courtroom.[8]”

These protocols may be useful to follow in other law practices particularly with junior practitioners to prepare them for the rigours of legal practice. A duty of care exists at common law to ensure that an employee is capable of the work they have been given and when they need assistance.

However, despite these studies it is just not only junior lawyers who can suffer from anxiety and depression contributed to by events in and around the courtroom. Many  older lawyers perhaps have had coping mechanisms in place for many years to steel one for the courtroom drama. After years of managing a busy practice  it can all get too much. Burn out, self-medication or worse may occur. Sometimes coping  mechanisms can malfunction if there are other pressures  of a personal  or financial kind imposing themselves upon one’s psyche.A bad day in court before a recalcitrant, bullying judge may be the psychological tipping point.  The foregoing is useful to comply with our own and if relevant our employers’ duties under the Work Health and Safety Act(NSW) 2011.Under that statute one must  identify risks in our work places and to remove or moderate them. However, more fundamentally it is far more beneficial   for own and our colleagues’ health and welfare to be aware of this problem, to call it for what it is  and to do our part to change the culture which permits it to happen.

One of the requisites of being an employee is to be ready, willing and able to work. A dilemma facing many employers is what to do with an injured worker for whom rehabilitation has not succeeded in restoring that person to health and fitness .This paper which I delivered at a seminar of LBRLegal deals with this question. Download Terminating Injured Employees.

Here is a paper I recently gave to the College of Law in Sydney on Independent Contractors